FAQ: COVID-19 Vaccinations and the ADA
This information is taken from the Job Accommodation Network (JAN) website, the leading source of free, expert, and confidential guidance on job accommodations and disability employment issues.
The availability of authorized COVID-19 vaccines offers hope that America is on the path toward pandemic recovery. Employers are doing their part to boost this recovery by implementing strategies for safely returning employees to the workplace and are seeking guidance on the impact of COVID-19 vaccines on this process.
1. Under the ADA, can an employer require that employees get vaccinated against COVID-19?
The ADA does not prohibit employers from requiring COVID-19 vaccinations. However, if an employer requires vaccinations as a condition of employment, various ADA rules may apply.
An employer who requires employees to get vaccinations administered directly by the employer or its agent will have to ask the CDC-recommended, pre-vaccination screening questions, and these questions include disability-related inquiries. Because the ADA limits when an employer may ask disability-related inquiries, the employer would have to show that the questions are job-related and consistent with business necessity if challenged.
By contrast, if an employer instead asks employees if they have received a vaccination in the community, or requires them to provide proof of vaccination, this is not a disability-related inquiry and is allowed under the ADA. However, the ADA requires an employer to treat the answer as confidential medical information. Also, if an employee cannot get a vaccination because of a disability, the employer must consider making accommodations.
For more information about the ADA and COVID-19 vaccinations, see section K in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Also, employers may want to seek legal advice as there may be other laws that apply to mandating employee vaccinations.
2. Is asking whether an employee has received a COVID-19 vaccination a disability-related inquiry under the ADA?
No. Asking if an employee has received a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, questions about why an employee has chosen not to be vaccinated could elicit information about a disability and would be subject to the ADA standard that disability-related inquiries of employees must be job-related and consistent with business necessity.
For more information about disability-related inquiries and COVID-19 vaccination, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
3. May an employer ask employees whether they have received a COVID-19 vaccination?
Yes. Asking if an employee has received a COVID-19 vaccination is not likely to elicit information about a disability and therefore is not a disability-related inquiry under the ADA.
For more information, including whether an employer can request proof of vaccination, see question K.3. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
4. How should an employer respond when an employee with a disability cannot receive the COVID-19 vaccine due to a medical reason?
An employer should recognize this as an accommodation request under the ADA and engage in an interactive process with the employee. The employer may gather information about the employee’s medical condition to determine if the employee has a disability and whether there is a reasonable accommodation that will eliminate or reduce any risk associated with working while unvaccinated that does not pose an undue hardship to the employer. Reasonable accommodation solutions can be explored using information about an employee’s essential job duties, the work environment, and the nature of the workforce. JAN can assist by providing guidance on accommodation solutions.
For a detailed discussion about how to respond when an employee with a disability requests to be exempt from a mandatory vaccination requirement, see question K.5. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
5. Can an employee who cannot comply with an employer’s mandatory COVID-19 vaccination policy because of a disability be excluded from the workplace if they cannot be accommodated to work safely while unvaccinated?
According to the Equal Employment Opportunity Commission (EEOC), if an employee cannot comply with an employer’s mandatory COVID-19 vaccination policy because of a disability and they cannot be reasonably accommodated to safely work, then the employer may exclude the unvaccinated employee from the workplace. This does not necessarily mean, however, that the employee may be terminated. The employer should determine if the employee is entitled to other accommodations, such as remote work, and if protections under other federal, state, or local laws apply.
See question K.7. at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
For more information and resources visit the JAN Accommodation and Compliance: Coronavirus Disease 2019 (COVID-19) webpage.
Job Accommodation Network (JAN) is receiving a wide range of questions on this topic, including whether mandatory COVID-19 vaccination may be required and how vaccination might impact the responsibility to provide reasonable accommodations for employees with disabilities or medical conditions under the Americans with Disabilities Act (ADA). COVID-19 vaccine-related workplace issues will continue to evolve.
Contact JAN to discuss a specific situation if you need additional information.
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